§ 570. The punishment of death must be inflicted, by hanging the defendant by the neck until he be dead.

Same as 2 R. S., 3d ed. 748, sec. 25.

§ 571. A judgment of death must, (except in the city and county of New York,) be executed within the walls of the jail of the county in which the conviction was had, or within a yard or enclosure adjoining the jail. In the city and county of New-York, it must be executed within the walls of the city-prison of the city of New-York, or within a yard or enclosure adjoining the same. If there be no such jail or prison in the county in which the conviction was had, or if it become unfit or unsafe for the confinement of prisoners, or be destroyed by fire or otherwise, and the jail of another county have been legally designated, for the confinement of the prisoners of the county in which the conviction was had, the judgment must be executed within the walls of the prison so designated, or within a yard or enclosure adjoining the same.

This section is taken from 2 R. S. 3d ed. 748, sec. 26. It is deemed advisable, however, to make it more explicit in reference to the distinction between the city-prison of the city of New-York, and the jails in the other counties. The last sentence, as above, is inserted, in conformity with Laws of 1846, p. 131, ch. 118.

§ 572. The sheriff or under-sheriff of the county must be present at the execution, and must invite the presence, (by at least three days notice,) of the judge, dis

trict attorney, clerk and surrogate of the county, together with two physicians and twelve reputable citizens, to be selected by him. He must also, at the request of the defendant, permit any minister of the gospel whom the defendant may name, and any of his relatives, to attend the execution; and also such peace officers, as the sheriff or under-sheriff may deem proper. But no other persons than those mentioned in this section, can be present at the execution; nor can any person under age be allowed to witness the same.

§ 573. The sheriff or under-sheriff, and the judges attending the execution, musí prepare and sign, with their names of office, a certificate, setting forth the time and place of the execution, and that the judgment was executed upon the defendant, according to the provisions of the last three sections: and must cause the certificate to be signed by the public officers, and by at least twelve persons, not relatives of the defendant, who witnessed the execution.

574. The sheriff or under-sheriff must cause the certificate to be filed in the office of the clerk of the county, and a copy thereof to be published in the state paper, and in one newspaper, if any, printed in the county.

The last three sections are substantially the same as 2 R. S, 3d. ed., 748, 749, sec. 27, 28,

Whether the punishment of death should ever be inflicted for crime, is a question into which the Commissioners did not feel authorized to enter. It was their province to provide for the mode of enforcing the penalties declared by the existing

law. How far the penal code needs revision, and whether the severity of criminal punishment should be lessened in any case, and if so, in which of them, it belongs to others to decide.

TITLE X.

OF APPEALS.

CHAPTER I. Appeals, when allowed, and how taken.

II. Dismissing an appeal, for irregularity.

III. Argument of the appeal.

IV. Judgment upon appeal.

CHAPTER I.

APPEALS, WHEN ALLOWED, AND HOW TAKEN.

SECTION 575. Writs of error and of certiorari, abolished. 576. Appeal substituted, as provided in this chapter. 577. Parties, how designated on appeal.

578. In what cases appeal may be taken by defendant.

579. In what cases, by the people.

580. In what cases, by either party.

581. Appeal, a matter of right.

582. Must be taken within one year after judgment.

583-586. Appeal, how taken.

587. Appeal by the people, not to stay or affect the judgment until re

588. Stay of proceedings, on appeal to supreme court, from judgment of

conviction.

589. Stay, upon appeal to court of appeals from judgment of supreme

court, affirming judgment of conviction.

590. Certificate of stay not to be granted, but on notice to district attorney. 591, 592. Effect of the stay.

593. Transmitting the papers to the appellate court.

§ 575. Writs of error and of certiorari, in criminal actions, as they have heretofore existed, are abolished; and hereafter, the only mode of reviewing a judgment or order, in a criminal action, is that prescribed by this chapter.

§ 576. The party aggrieved, whether the people or the defendant, may appeal, from a judgment in a criminal action, in the cases prescribed in this chapter,

§ 577. The party appealing is known as the appellant, and the adverse party as the respondent. But the title of the action is not changed, in consequence of the appeal.

§ 578. An appeal to the supreme court may be taken by the defendant, from a judgment on a conviction; and upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll, as prescribed by section 550, may be reviewed.

§ 579. An appeal to the supreme court may be taken by the people, in the following cases, and no other:

1. Upon a judgment for the defendant, on a demurrer to the indictment:

2. Upon an order of the court, arresting the judg

ment.

§ 580. An appeal may be taken from the judgment of the supreme court to the court of appeals, in the following cases, and no other:

1. From a judgment affirming a judgment of conviction:

2. From a judgment affirming or reversing a judgment for the defendant, on a demurrer to the indictment, or on an order of the court arresting the judgment.

§ 581. An appeal may be taken, as provided in the last three sections, as a matter of right.

Section 575 abolishes all existing modes of reviewing judgments or orders in criminal cases, and substitutes an appeal, in

the cases provided in the sections which follow. The form of this section is substantially the same as that of the corresponding one in the amended Code of civil Procedure. (sec. 323.)

There are, by the existing practice, two modes of appeal in criminal cases; first, before judgment upon a bill of exceptions, and second, upon a judgment.

The first of these modes of appeal, before judgment upon a bill of exceptions, was unknown to the common law, and was created for the first time by the Revised Statutes. Indeed, before that time, there was no bill of exceptions in a criminal case; the only mode of correcting an error occurring on the trial, being by the reservation of the question by the court in which the trial was had, for the advice of the supreme court. The Revised Statutes gave the right to the defendant, to take exceptions to any decision of the court, in the same cases and manner provided by law in civil cases; and provided that a bill thereof should be settled, signed and sealed, and should be filed with the clerk of the court, and returned upon a writ of error after judgment, or upon a certiorari before judgment. 2 R. S. 3d, ed. 820, sec. 21.

The bill of exceptions being settled and signed, judgment upon the conviction is stayed, provided the presiding judge or a judge of the supreme court certify on the bill of exceptions, that in his opinion there is probable cause for,the same, or so much doubt as to render it expedient to take the judgment of the supreme court thereon; but this certificate cannot be granted by a judge of the supreme court, unless application therefor be first made to the judge who presided at the trial, and his reasons for refusing it be attached to the bill of exceptions. 2 R. S. 3d. ed. 821, sec. 22-25.

After making provision for admitting the defendant to bail, Ibid. sec. 26. it is further provided that when judgment is thus stayed, the district attorney shall immediately sue out a writ of certiorari, to remove the indictment, with the bill of exceptions and other proceedings thereon, into the supreme court. lbid. sec. 27. If the supreme court decide against the exceptions, it is authorised either to render judgment and pronounce sentence, or to remit the case for that purpose to the court in which the trial was had. 2 R. S. 3d ed. 826, sec. 27. If a new trial be ordered, it must be in the court in which the first trial was had. Ibid. sec. 28.